A panel of state lawmakers on Monday tweaked, then sent for consideration by the full House chamber, a bill that would adjust how the state’s new voter-approved redistricting works this year, in response to census data delays caused by the global pandemic.
But lawmakers plan, once the bill on the verge of final passage, won't send it to Gov. Jared Polis for a signature, It will go to the state supreme court, using a rare maneuver to get the court to sign off on statutory changes that would affect the redistricting process, which was written into the state constitution with the 2018 passage of amendments Y and Z.
Normally, the decennial census data, which attempts to count every person and every household, would be sent to states to be used for the once-in-a-decade redistricting process, where political maps are redrawn to equalize representation in Congress and statehouses. Because of the global coronavirus pandemic, the U.S. Census Bureau has said data will come months later than planned, causing delays for all states’ redistricting efforts.
Senate Bill 21-247, passed in the House State, Civic, Military and Veterans Affairs committee on Monday and now headed toward final consideration by the chamber, would instruct the new citizen redistricting commissions to use census bureau survey sample data from 2019 to draw preliminary maps, then later use the decennial census data to adjust the preliminary maps and make a final plan.
Using the survey sample data would allow the state’s redistricting commissions to finish their work and meet deadlines that were included in the voter-approved citizen redistricting commission initiatives, one of the redistricting commission chairs said during Monday’s committee hearing. The data would come from the American Community Survey, a rolling survey of roughly 2.7% of the population.
Waiting for the decennial census data, now expected to come in two rounds in August and September, would cause deadlines to be blown and could threaten to delay the 2022 election cycle, lawmakers and redistricting commission staff have said. The bill would avoid that, proponents say, and help county clerks and the secretary of state stay on the redistricting timeline laid out in amendments Y and Z and complete their work executing the 2022 election without problems. It would also help elected officials and future candidates get their campaigns started earlier than if the map-drawing process were delayed.
“This bill gets us back on track to meet the constitutional deadlines, and do it in a way that doesn’t negatively impact the 2022 election cycle,” said Rep. Daneya Esgar, D-Pueblo, one of the bill’s prime sponsors.
But using the 2019 survey data, as the bill instructs, would mean touring the state for public hearings and gathering public input, as amendments Y and Z also require, with maps based on possibly inaccurate data. Amanda Gonzalez, the executive director for Common Cause Colorado, said during Monday’s hearing that the public voted for a redistricting process that includes meaningful public input on maps drafted using the official decennial census data, not on maps drawn using survey estimates.
“Amendments Y and Z did anticipate that a preliminary map would be drawn and that Coloradans would then have ample opportunity during 21 public hearings to make comments on that map. What is being contemplated by this bill is that the preliminary map will be drawn with the American Community Survey. It’s a survey. It doesn’t count every single person the way the decennial census does,” Gonzalez said. “I want to make sure that Coloradans have an opportunity to comment on maps that are drawn using that final decennial census data, which is what was originally contemplated in amendments Y and Z.”
She pointed out that using the survey estimates, with a higher margin of error, could also disproportionally affect historically under-represented populations. Minority voters have special legal protections during redistricting, under the 1965 Voting Rights Act, so such margins of error could challenge compliance with the Voting Rights Act, and even open the mapping process to legal challenges.
The committee amended the bill to include that at least one public hearing must be held where maps using the final census data can be reviewed and commented on.
Once the bill goes through second reading in the House -- and the bill has so far passed with near unanimity in the state Senate and state House -- it would be put on hold for a final vote while the Legislature sends questions to the state supreme court, a legal maneuver called an interrogatory, to get the court’s opinion. A court opinion supporting the legislation would provide legal cover to the commission.
Rep. Esgar said the interrogatory resolution is still being drafted, but that the bill is moving quickly.
“I’m hoping to get the bill passed and send the interrogatory by end-of-day Wednesday,” Esgar said.